No licence to kill

  • Legal amendments must be made to ensure that crimes by security agencies are investigated independently
- Dipendra Jha
No licence to kill

Aug 14, 2014-

Last week, Dinesh Adhikari, widely known as ‘Chari’, was killed in an alleged encounter with the police. His death has since raised many questions regarding the police’s claim of an encounter. Nepal has abolished the death penalty, and therefore, nobody, not even the state, has the right to take another person’s life. Chari was no doubt a notorious criminal, but he should have been prosecuted for his offences in a court of law, not killed outright.

Reports ignored

Extrajudicial killings are not rare occurrences in Nepal. On June 1, Constituent Assembly (CA) member Upendra Yadav, who is also chairperson of the Madhesi Janadhikar Forum-Nepal, issued a statement against regular occurrences of extrajudicial executions in the Tarai, saying, “The blood of Madhesis is not water.” Yadav said that the pattern of killings are similar to those investigated by the Office of the High Commissioner of Human Rights (OHCHR) in its July 2010 report, where it investigated 57 alleged extrajudicial killings between January 2008 and July 2010.

Another CA member, Laxman Lal Karna, has also raised his voice against encounter killings in Parliament. He spoke against the mysterious silence maintained by Kathmandu even when a series of fake encounters have taken place in the Tarai since 2007. Likewise, when Jhala Nath Khanal was prime minister, the Samyukta Loktantrik Madhesi Morcha handed a memorandum to the government demanding an immediate halt to fake encounters in the Tarai and prompt investigations into the matter. Sadly, none of the  major leaders from other political parties raised the issue then.

No citizen, whether they live in the hills or the Madhes, should be killed in a fake encounter. The tragedy, however, is that Kathmandu became vocal only when Chari’s alleged encounter killing  appeared in the media. Civil society organisations in Kathmandu did not support OHCHR’s argument when it raised the issue of extrajudicial killings in the Tarai. The Government of Nepal completely denied such allegations during Nepal’s universal periodic review in Geneva.

Investigations into the 57 encounter killings in the Tarai were possibly one of the major reasons for OHCHR’s exit from Nepal. The ruling class was extremely unhappy with its report. Human rights organisations based in Kathmandu, therefore, should know that if they had raised this issue when OHCHR first published its report, perhaps the lives of those who have since been killed in fake encounters could have been saved.  

In its ‘Allegation of Extra-judicial Killing In Terai’ report, OHCHR argues that despite using unlawful lethal force when apprehending suspects, the authorities justified these killings by claiming (without any evidence) that the individuals were killed during an encounter (exchange of gunfire between security forces and insurgent forces) or cross-fire. Furthermore, no police officers were found to be injured or killed.


Suspicious cases

Even in the Chari case, there have been no reports of injuries inflicted on police officers despite an alleged cross-fire between Chari and the police. The police report that eight rounds of ammunition were fired but local witnesses report hearing only five shots. Chari might have been involved in a crime but his right to life should still have been respected. He could have been arrested, charged and tried for any crimes committed, not shot in cold blood. After all, the police are supposed to uphold the rule of law.

 When an unlawful killing occurs, the government often does not form an investigation team and even when it is does, it rarely implements the team’s recommendations. In some cases of alleged encounter killings, police have told human rights activists that the death is being investigated as involuntary manslaughter but no visible progress is seen.

In the encounter case of Manager Mahato, the state level Bihar Human Rights Commission punished its police officers, who handed over Manager to the Nepal Police, and provided Rs 100,000 in compensation to the victim’s family. The Bihar Human Rights Commission expected Nepali authorities to follow their action but that never happened. Similarly, in the case of Harendra Shah Teli, the police reported that he was involved with a group of bandits and suspected of involvement in criminal activities. His family, however, denies this, and there were no cases or complaints filed against him. In one case, the Indian Police arrested suspected members of an armedgroup and handed them over to the Nepal Police. They were subsequently reported to have been killed.

So during Nepal’s human rights review in Geneva on March 19, the UN Human Rights Committee asked the Nepal Government to set up a special investigative unit with sufficient independence to inquire into allegations of extrajudicial killings.

Legal loopholes

Currently, there are no laws or mechanisms in the Nepali criminal justice system to investigate crimes committed by security agencies. The State Case Act only allows police officers to investigate criminal cases and handover the file to government attorneys for prosecution. The State Case Act has no provision on what happens if similar crimes are committed by police officers. This is a big legal loophole. How can an investigation be independent and credible when a crime is both committed and investigated by police authorities? The National Human Rights Commission has no authority to file criminal charges against the accused. This constitutional body is like a tiger without teeth; its recommendations are limited to compensation.

Civil administrative action or departmental action against the culprits is rarely taken. So, among other things, Chari’s encounter has highlighted the case for amendments to the State Case Act. The government must form an independent investigation mechanism when any crimes are committed by security agencies. It could be an independent special investigation team in the Nepal Police or a special desk at the Attorney General’s office to investigate such crimes.

Commissions of inquiry are often formed only when there is pressure to do so. Building a criminal justice system that is efficient and effective is the only way to deal with these types of allegations. If dealing with one case of human rights violation is important, it is even more essential to make timely changes to our justice system so that the system can improve.

There have been a large number of encounter killings post 2007, when the CPN-UML headed the Home Ministry, and a similar trend is visible now. It is time for leaders like Rajendra Pandey, who were very vocal in Parliament regarding Chari’s case, to create more pressure within the party and the Parliament, both to find a long term solution to this problem by amending laws and to create a mechanism so that no Nepali dies in a so-called ‘encounter killing’.


Jha is an advocate at Supreme Court

Published: 15-08-2014 09:32

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